Citation Nr: 0410663
Decision Date: 04/26/04 Archive Date: 05/06/04
DOCKET NO. 94-20 111 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona
THE ISSUES
1. Entitlement to an initial rating higher than 70 percent for
post-traumatic stress disorder (PTSD) from June 21, 2000.
2. Entitlement to an initial rating higher than 50 percent for
PTSD before June 21, 2000.
3. Entitlement to an increased rating for residuals of a shell
fragment wound to the liver and pancreas with subclinical
hepatitis and abdominal adhesions, currently evaluated as 50
percent disabling.
4. Entitlement to an increased rating for residuals of a shell
fragment wound to the abdominal wall, currently evaluated as 10
percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
R. L. Shaw, Counsel
INTRODUCTION
The veteran had active military service from January 1966 to
December 1968.
This matter is before the Board of Veterans' Appeals (Board) on
appeal from a March 1993 rating decision by the Phoenix, Arizona,
Regional Office (RO) of the Department of Veterans Affairs (VA)
which granted service connection for PTSD and assigned a 30
initial evaluation from October 30, 1992, the effective date of
the service connection award. The veteran has appealed the rating
assigned for the disorder. In January 1994 a hearing officer
raised the initial rating to for PTSD 50 percent, and in May 2002
the RO awarded a further increase to 70 percent from June 21,
2000. Despite these partial increases, the appeal as to the
initial rating for PTSD remains before the Board since the maximum
available rating for PTSD has not been awarded. See AB v. Brown,
6 Vet. App. 35, 38 (1993) (a rating decision issued after a notice
of disagreement which grants less than the maximum rating
available does not "abrogate the pending appeal").
The veteran has also appealed the RO's March 1993 denial of claims
for an increased rating for residuals of a shell fragment wound to
the liver and pancreas with subclinical hepatitis and abdominal
adhesions, currently evaluated as 50 percent disabling, and for
residuals of a shell fragment wound to the abdominal wall,
evaluated as 10 percent disabling. The veteran testified at a
hearing at the RO in August 1993 in connection with his appeals.
On preliminary review of the record in September 2002, the Board,
pursuant to authority granted by newly promulgated VA regulations,
undertook additional development of the evidentiary record. See
67 Fed. Reg. 3,099, 3,104 (Jan. 23, 2002) (codified at 38 C.F.R. §
19.9(a)(2)). In December 2003 the Board informed the veteran by
letter of a change in the rating criteria for liver disorders and
of additional law and regulations that would be considered in
deciding his appeal. The veteran was given an opportunity to
submit additional evidence or argument in light of this
information but he did not reply within the period specified. The
case is now ready for further Board review of the issue on appeal.
In a February 2003 letter, the veteran expressed the belief that
he is entitled to an
80 percent rating for PTSD since 1967, an 80 percent rating for
his "digestive condition abdominal adhesion" since 1967, a 30
percent rating for abdominal scars since 1967, a 20 percent rating
for the "muscle of the left calf" since 1967, and a 10 percent
rating for a scar on the right side of the chest since 1967.
These matters have not been developed or certified for review on
appeal but are referred to the RO for appropriate action. Godfrey
v. Brown, 7 Vet. App. 398 (1995).
This appeal is REMANDED to the RO via the Appeals Management
Center (AMC) in Washington, D.C. VA will notify the veteran if
further action is required on his part.
REMAND
This claim must be afforded expeditious treatment by the Veterans
Benefits Administration (VBA) AMC. The law requires that all
claims that are remanded by the Board or by the United States
Court of Appeals for Veterans Claims (CAVC) for additional
development or other appropriate action must be handled in an
expeditious manner. See The Veterans Benefits Act of 2003, Pub.
L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be
codified at 38 U.S.C. §§ 5109B, 7112).
This appeal is subject to the Veterans Claims Assistance Act of
2000 (VCAA), which became effective on November 9, 2000. The CAVC
has held that section 5103(a), as amended by the VCAA and §
3.159(b), as recently amended, require VA to inform a claimant of
which evidence VA will provide and which evidence claimant is to
provide, and remanding where VA failed to do so. See Quartuccio
v. Principi, 16 Vet. App. 183 (2002); see also 38 U.S.C.A. §§
5100, 5102, 5103, 5103A and 5107 (West 202); 38 C.F.R. §§ 3.102,
3.156(a), 3.159 and 3.326(a) (2002).
As noted above, pursuant to authority granted by newly promulgated
VA regulations, the Board undertook evidentiary development
relevant to the issues on appeal. See 67 Fed. Reg. 3,099, 3,104
(Jan. 23, 2002) (codified at 38 C.F.R. § 19.9(a)(2)). As a result
of the Board's development, records from the Vet Center in Phoenix
that were not previously on file were obtained for the record.
However, while completion of the Board's evidentiary development
was pending, the United States Court of Appeals for the Federal
Circuit (CAC), in Disabled American Veterans et. al. v. Secretary
of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), invalidated
portions of VA regulations that permitted the Board to decide
appeals using evidence that had not previously been reviewed at
the RO, including that developed by the Board.
The consequence of the CAFC's ruling is that the Board no longer
is authorized to decide appeals on the basis of evidence that has
not been reviewed initially by the RO, absent waiver by the
appellant. Neither the veteran nor his representative has waived
in writing the veteran's procedural right to initial RO review of
the additional evidence. Consequently, the case must be remanded
to the RO for initial consideration of the newly-obtained material
in accordance with the usual adjudication procedures.
Additional actions are also necessary to satisfy the duty to
assist requirements. In particular, the Board notes that in
response a December 2002 development letter, the veteran submitted
a signed authorization for VA to obtain VA treatment records from
the VA Medical Center in Phoenix, Arizona, for the period from
1998 to the present. Although a signed authorization is not
required in order for VA to obtain Government records, procurement
of this material is necessary to satisfy the duty to assist.
The Board further finds that since the veteran has not undergone a
VA examination for compensation purposes since June 2000, current
examinations by appropriate specialists should be performed. See
Green v. Derwinski, 1 Vet. App. 121, 124 (1991). ("[F]ulfillment
of the statutory duty to assist...includes the conduct of a
thorough and contemporaneous medical examination, one which takes
into account the records of prior medical treatment, so that the
evaluation of the claimed disability will be a fully informed
one." (emphasis added)).
The Board observes that additional due process requirements may be
applicable as a result of the enactment of the VCAA and its
implementing regulations. See 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A and 5107 (West 2002) and 66 Fed. Reg. 45,620 (Aug. 29, 2001)
(38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)).
Accordingly, the case is remanded to the VBA AMC for further
action as follows:
1. The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to the
VBA AMC. Kutscherousky v. West, 12 Vet. App. 369 (1999).
2. The VBA AMC must review the claims file and ensure that all
VCAA notice obligations have been satisfied in accordance with 38
U.S.C.A. §§ 5102, 5103, and 5103A (West 2002), Veterans Benefits
Act of 2003, Pub. L. 108-183 ,§ 701, 117 Stat. 2651, ___ (Dec. 16,
2003) (to be codified at 38 U.S.C.A. § 5103), and any other
applicable legal precedent.
Such notice should specifically apprise the appellant of the
evidence and information necessary to substantiate his claim and
inform him whether he or VA bears the burden of producing or
obtaining that evidence or information, and of the appropriate
time limitation within which to submit any evidence or
information. 38 U.S.C.A. § 5103(a) and (b) (West 2002);
Quartuccio v. Principi, 16 Vet. App. 183 (2002).
3. The VBA AMC should obtain all available treatment records from
the VA Medical Center in Phoenix for the period from 1998 through
the present.
All information which is not duplicative of evidence already
received should be associated with the claims file.
4. If the VBA AMC is unable to obtain such records, it should
notify the veteran that it has been unable to obtain such records
by identifying the specific records not obtained, explaining the
efforts used to obtain those records, and describing any further
action to be taken with respect to the claim. VCAA, Pub. L. No.
106-475, § 3(a), 114 Stat. 2096, 2097-98 (2000) (to be codified at
38 U.S.C. § 5103A(b)(2)).
5. The VBA AMC should arrange for VA special psychiatric,
surgical and gastrointestinal examinations of the veteran by
appropriately qualified physicians, including on a fee basis if
necessary, for the purpose of ascertaining the nature and severity
of the disabilities at issue on appeal.
The claims file and a separate copy of this remand must be made
available to and reviewed by the examiners prior and pursuant to
conduction and completion of the examinations.
The examiners must annotate the examination reports that the
claims file was in fact made available for review in conjunction
with the examinations. Any further indicated special studies must
be conducted. Any opinions expressed by the examiners as to the
severity of the disabilities at issue must be accompanied by a
complete rationale.
6. Thereafter, the VBA AMC should review the claims file to
ensure that all of the foregoing requested development has been
completed. In particular, the VBA AMC should review the
examination reports to ensure that they are responsive to and in
complete compliance with the directives of this remand and if they
are not, the VBA AMC should implement corrective procedures. The
Board errs as a matter of law when it fails to ensure compliance,
and further remand will be mandated. Stegall v. West, 11 Vet.
App. 268 (1998).
In addition, the VBA AMC must review the claims file to ensure
that any other notification and development action required by the
VCAA, Pub. L. No. 106-475 is completed. In particular, the VBA
AMC should ensure that the new notification requirements and
development procedures contained in sections 3 and 4 of the Act
(38 U.S.C. §§ 5102, 5103, 5103A and 5107) are fully complied with
and satisfied.
6. After undertaking any development deemed essential in addition
to that specified above, the VBA AMC should readjudicate the
issues on appeal.
If the benefits requested on appeal are not granted to the
veteran's satisfaction, the VBA AMC should issue a supplemental
statement of the case (SSOC). The SSOC must contain notice of all
relevant actions taken on the claim for benefits, to include a
summary of the additional evidence obtained on remand,
particularly evidence associated with the claims file without
waiver of VBA AMC consideration, and applicable law and
regulations pertinent to the claim currently on appeal. A
reasonable period of time for a response should be afforded.
Thereafter, the case should be returned to the Board for final
appellate review, if in order. By this remand, the Board
intimates no opinion as to any final outcome
warranted. No action is required of the veteran until he is
notified by the VBA AMC; however, the veteran is herby notified
that failure to report for any scheduled VA examination(s) may
adversely affect the out of his claims, and may result in their
denials. 38 C.F.R. § 3.655 (2003).
_________________________________________________
RONALD R. BOSCH
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board
is appealable to the CAVC. This remand is in the nature of a
preliminary order and does not constitute a decision of the Board
on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2003).